Fasten Your Seatbelts: We’re in for a Bumpy Electoral Ride

September 14, 2020 by David Toscano

Many of the nation’s theme parks have been closed during the pandemic. But that isn’t stopping Americans from being forced to take a roller coaster ride in the form of the 2020 elections. The stakes are high, not just for who is elected President, but for who will control statehouses across the nation. The results may be in dispute for weeks following election day, and will undoubtedly determine the direction of the country for the next decade at least.

The nation began 2020 focused on the impeachment of the President and the possible impact it might have on the fall election. We learned much about the Russian meddling in our 2016 contest on behalf of Donald Trump, and many worried that insufficient safeguards had been put into place to prevent its reoccurrence. Then came COVID, which prompted policy makers to reexamine our election process from the angle of public safety. In addition to the prospect of Putin attempting to again disrupt our elections, we now have other issues about which to worry. Many of these battles will be fought in the individual states and will undoubtedly focus on state law and how it is interpreted in state courts. The stakes are high; not only is the Presidency, all congressional seats, and one-third of the U.S. Senate up for election, but contests are being held to determine the composition of 86 out of 99 state legislative chambers. This is significant; with minor exceptions, the party that controls the state legislatures in 2021 will operate the redistricting process that will occur next year. Legislatures will determine the lines for future congressional districts and state legislative contests. With that tool, they have the power to control not just state government but the House of Representatives as well. If Americans have not learned during the COVID pandemic that States matter, they are about to find out.

Fights in state courts could play a role

When Trump first suggested the idea of delaying the election, many were dismayed, even as they recognized that he had no power to do so. But the threat of electoral chaos is not likely to come from the possible delay of the election, but instead from a series of lawsuits that could be filed before and after November 3^rd. Trump and his allies have signaled this possibility for weeks, suggesting that the only way he can lose is if the election is “rigged”. He has disrupted the operation of the postal service and suggested that mail-in voting creates rampant fraud.

Remember the 2000 presidential election and how one lawsuit in one state interpreting one state’s election law determined the Presidential contest? None of us will forget Bush v. Gore and the nation waiting more than a month until the U.S. Supreme Court intervened and, in a 5-4 decision, essentially made George W. Bush the President. Now, imagine not one but multiple lawsuits contesting countless ballots in swing states across the nation. It could happen! Election processes in several states have already been challenged. In Wisconsin’s April primary election, the state’s Supreme Court ruled against Governor Evers’s effort to delay the election and the U.S. Supreme Court then changed the dates for the acceptance of absentee ballots. Similarly, thousands of mail-in ballots in the Florida, Pennsylvania, and Nevada arrived too late to be counted. And Georgia’s June contest saw long lines, a product of technical glitches and fewer polling locations. Disputes continue about whether the pandemic is a legitimate legal excuse to vote absentee and whether localities have authority to install voting boxes, all of which can serve as the basis for litigation this November.

In June, the Trump reelection campaign sued state and county officials in Pennsylvania, arguing that mail ballot drop boxes were unconstitutionally deployed in the primary and asking a federal court to bar them in November. After Nevada passed measures in late July to make voting easier, Trump allies sued to challenge the new law. Both the Republican and Democratic parties are gearing up for litigation in the event the election is close.

Many of these suits will commence in state courts, and the results are difficult to predict. Each state has its own set of laws—for when and whether to count absentee votes, how to handle provisional ballots, the extent to which polls will remain open if people want to vote, the location of voting precincts, and even the role of the state legislature in possibly determining the federal electors to choose the President. Take, for example, state laws for the counting of absentee ballots. Thirty-two states presently do not accept absentee ballots received after election day, even if they are postmarked weeks in advance. And we know what happens if the mail is disrupted. In 2018, for example, over 7,700 mail-in ballots in South Florida counties were rejected because they arrived after the state’s Election Day deadline. According to a recent analysis by NPR, more than 550,000 mail-in ballots nationwide have been rejected in this year’s presidential primaries.

While few know precisely how the pandemic will affect voting patterns, most observers expect an avalanche of mail-in votes, and those will be the ones most likely to be challenged. Swing states that allow mail-in voting include Arizona, Florida, Wisconsin, Pennsylvania, Michigan, Ohio and Georgia. These states have a total of 111 electoral votes, certainly enough to decide the Presidential election. To make it more complicated, four of those states — Florida, Pennsylvania, Michigan, and Wisconsin–have state laws that prevent acceptance of mail-in ballots if received after election day, even if postmarked weeks in advance. And, in all but Florida, these states cannot begin processing, much less count, absentee ballots until Election Day. The election could hinge on these four states, and the prospects for litigation in each is high.

Who can predict what might happen if the litigation continues into late December or early January? Would Republican-controlled state legislatures attempt to invoke Article II of U.S. Constitution, which arguably grants them the power to appoint presidential electors, something that has not been exercised since the 1800s and which would effectively negate the popular vote of the state’s electorate? These electors, appointed under state law, could then cast their votes for the President. Whether the GOP would risk the public outcry that would come from such an action is not clear.

Though the scenario of legislatures seizing control of the presidential electors seems highly unlikely, the danger is most acute in states where both legislative chambers and the Governorship are controlled by the same party, what some call the “trifecta.” The GOP has a trifecta in the key states of Arizona, Florida, Ohio, and Georgia. In three others — Michigan, Pennsylvania, and Wisconsin – both houses of the legislature are controlled by Republicans.

State Legislatures are also at stake

More is at stake in this election than simply who will be elected president. Elections are being held for House and Senate seats in 42 states, and the results may flip control of state assemblies from one party to another, just prior to the next redistricting. Many recall the 2010 midterm elections, when the Republicans decimated the Democrats and captured control of the Congress. What few remember, however, is how these midterms affected state legislatures. Prior to the 2010 election, Democrats held the majority of seats in 60 of 99 legislative chambers nationwide, and controlled both chambers in 27 states. After the election, the balance had totally flipped, and Republicans had the majority in 59 chambers and held both chambers in 26 states. This allowed the the GOP to control the decennial redistricting process by drawing districts to cement their majorities and creating new congressional districts favoring their party for the next decade. Hence, 2020 is not simply about the next four years, but the next 10. States matter, and this election will determine much about who will control them.

It is clear that the Trump strategy is to undermine faith in the election, thereby depressing turnout, and then mount legal contests in selective states to create chaos in the counting of the ballots. The only way this can be foiled is by a decisive turnout in November, where there is no doubt about who has carried the states necessary to win the Presidency. That is why efforts are underway in most states to get citizens to cast their votes as early as possible, thereby limiting the risks that some votes will not be counted because they arrive too late. Some states, most notably Virginia, have anticipated the challenges and have acted to make voting easier. Attorney General Mark Herring recently obtained a federal court order protecting the ability of Virginians to have their mail-in votes counted, and the General Assembly just enacted measures permitting localities to install ballot drop boxes and funds to provide prepaid postage for mail-in ballots.

The 2020 election is the most significant in over a century. And how states conduct the counting of votes will largely determine not just the results, but how soon we will get them and the extent to which they will embraced by the American people. To make sure my vote is counted, I will vote absentee in person, a process which starts next week. The next two months will say much about our institutions and whether they can withstand the most significant challenge we have seen to democracy in our lifetimes.

States of Emergency: Governors and the Public Wage War on COVID-19

March 29, 2020 by David Toscano

On December 31, 2019, a brief release appeared on the website of the World Health Organization (WHO). Captioned “Pneumonia of unknown cause – China,” it briefly reported about a number of cases of pneumonia of unknown etiology (unknown cause) detected in the city of Wuhan, a port city of 11 million inhabitants. Few in this country took note, with the notable exception of scientific specialists in the areas of infectious diseases and public health.

Halfway around the world, Governors and state legislators were preparing for their annual legislative sessions. Virginia was among the first of the states to convene, and they did so on January 8. Major changes were contemplated for the state, since the Democrats had just taken control of the legislature and held the Governor’s office as well. On the other side of the country, Washington state convened its own session on January 13. Both states were making history as each elected their first women Speakers in history — Eileen Filler-Corn in Virginia and Laurie Jinkins in Washington. And Democratic Governors Jay Inslee of Washington and Ralph Northam were optimistic about making their marks on their states in light of a strong economy and Democratic majorities. Within two months, they would join other Governors across the nation, as they confronted the greatest challenges of their administrations, and their states would be plunged into the most serious crisis since the Great Depression. [Read more…]

Sanctuaries with Guns?

December 20, 2019 by David Toscano

Turning the Rule of Law Upside Down

The Tazewell County, Virginia, Board of Supervisors recently jumped aboard the fast-moving “Second Amendment sanctuaries” train. In doing so, they embraced positions fundamentally at odds with state and federal constitutional law. Passing resolutions opposing certain laws or protesting governmental action is perfectly consistent with our traditions as a democracy, and no one should oppose the rights of citizens and their representatives to speak their minds. But Tazewell, and a number of other localities across Virginia, want to do much more. As Eric Young, an attorney and the county’s Administrator, put it, “our position is that Article I, Section 13, of the Constitution of Virginia reserves the right to ‘order’ militia to the localities; counties, not the state, determine what types of arms may be carried in their territory and by whom. So, we are ‘ordering’ the militia by making sure everyone can own a weapon.” Other counties are announcing different schemes if gun safety laws are enacted: for example, the Culpeper County sheriff pledged to deputize “thousands of citizens” so they can own firearms.

Conservatives have railed for years against so-called “sanctuary jurisdictions,” criticizing localities that refuse to cooperate with federal immigration policies they deem heartless and ineffective. In the past year, however, some conservative lawmakers have taken a page from the progressive playbook, employing sanctuary imagery in opposition to gun safety legislation they deem to be an unconstitutional restriction of their rights under the Second Amendment.

The two approaches are classic cases of false equivalency. Jurisdictions that proclaim themselves sanctuaries for immigrants do not seek to violate the law; they simply refuse to engage local law enforcement in supporting actions that are federal responsibilities. They do not block the law, but simply insist that it should be enforced by those who have the responsibility to do so. For some proponents of so-called gun sanctuaries, however, the goal is to prevent enforcement of state law that the jurisdiction (not a court) deems unconstitutional.

After Democrats won majorities in both chambers of the Virginia General Assembly, fears of stricter gun regulations have inspired a rise in Second Amendment sanctuary activity in Virginia. Sanctuary efforts are driven mainly by the Virginia Citizens Defense League, a gun rights group to the right of the NRA. My office’s analysis of recent news accounts indicates that before November 5, just one county had passed a resolution; since the election, at least 80 localities (counties, cities, or towns) have passed some form of sanctuary resolution, and as many as 34 more are considering their adoption.

A Rebellion Emerges

Second Amendment sanctuaries exploded onto the national scene in early 2019 after newly-elected Democratic Gov. J.B. Pritzker pledged to pass gun safety measures in Illinois. Within months, 64 of the state’s 102 counties passed sanctuary resolutions. After New Mexico expanded background checks in 2019, 30 of 33 counties declared themselves Second Amendment sanctuaries. Similar actions have either been taken or are under consideration in Colorado, Oregon, Washington state, and now Virginia.

In some cases, these resolutions simply register an objection to any infringement on gun owners’ rights. But some Virginia localities have gone further, indicating that they will not enforce state law that they deem unconstitutional. Some proponents have even resurrected words like “nullification” and “interposition,” terms first used extensively by Southern secessionists prior to the Civil War, and more recently during the “massive resistance” to federal laws requiring desegregation in the 1960s. They argue that constitutional officers in Virginia, such as Commonwealth’s Attorneys and Sheriffs, have discretion not to enforce laws that they consider “unconstitutional.” In Virginia, there has always existed some debate about the independence of these officers, but, while they are creations of the Constitution, their duties are nonetheless “prescribed by general law or special act.” In short, sheriffs may be “constitutional officers,” but they are not “constitutional interpreters.”

Flashpoints in the Culture Wars

The emergence of these sanctuaries demonstrates a growing rift in our nation. For residents in many rural areas of our country, guns are viewed as part of their way of life, one some fear that they will lose due to national and state changes. Most gun owners are law-abiding citizens, and any effort to limit anyone’s access to firearms is perceived as a direct attack on many things that they hold dear. During the Obama years, the manufacture and purchase of firearms increased in dramatic numbers in part due to unfounded fears that the government would try to take away guns. Voting to declare themselves “sanctuaries” is a way they can reassert some control over events that they feel are putting them at risk. For these communities, it matters little that reasonable gun safety proposals have largely passed constitutional muster, or that most proponents of these measures have no intention of taking anyone’s guns away unless it can be shown, in a court of law, that they are a danger to themselves or others.

At the same time, the general public is increasingly supportive of certain gun safety measures. An April 2018 poll found that 85 percent of registered voters support laws that would “allow the police to take guns away from people who have been found by a judge to be a danger to themselves or others” (71 percent “strongly supported”). These measures, called Emergency Risk Protection Orders (ERPO), or “red flag” laws, create judicial procedures by which persons with serious mental health challenges deemed a threat to themselves or others can have their weapons removed until their situation is resolved; courts can be engaged to protect the rights of the accused. And a March 2019 Quinnipiac poll reported that 93 percent of American voters support a bill that would require “background checks for all gun buyers.”

The energy behind support of gun measures like “red flag” laws is generated by concern for mass shootings, which are statistically rare but dramatic in their public impact, and the increasing numbers of gun-related suicides, which impact families and communities in quiet but devastating ways. On the latter front, there is a certain irony that some communities which have embraced Second Amendment sanctuary status also have higher gun suicide rates than other communities in their state. In Colorado, for example, nine of the 10 counties with the highest suicide rate over the past 10 years have declared themselves “Second Amendment sanctuaries,” many after the state passed an ERPO law in 2019. Of the 24 Colorado sanctuary counties for which suicide data is available, 22 (or 92 percent) had firearm suicide rates above the state average. Similarly, in Virginia, 36 of the 51 localities that have adopted a resolution to date and for which firearm suicide data is available have rates higher than the state median.

Recent polling in Virginia tells us that citizens of the Commonwealth are in step with the national trends documented above: Roanoke College’s Institute for Public Opinion Research recently released polling results which show that 84 percent of respondents favor universal background checks, and 74 percent support allowing a family member to seek an ERPO from a court. Yet in the very same pool of respondents, 47 percent believe it is more important to protect the right to own guns than to control gun ownership. The only way to make the math add up is to recognize that some people who strongly support Second Amendment rights may also support at least some reasonable gun safety measures—an approach the “sanctuary” advocates would never adopt. But even former Supreme Court Justice Antonin Scalia might have had problems with some of the arguments being advanced by proponents of sanctuaries. “Like most rights,” he wrote in District of Columbia et. al. v. Heller, “the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” In short, rights under the Second Amendment have never been absolute. And under both the national and state Constitutions, our courts are tasked with determining the constitutionality of laws—not local sheriffs.

Home Rule vs. Dillon Rule

Proponents of Second Amendment sanctuaries have another problem in Virginia; the Commonwealth is what we call a “Dillon Rule” state. This means that if a power is not specifically permitted to a locality, state law rules. Progressives have been especially critical of Dillon Rule arguments in years past, believing that they have prevented localities from enacting policies—from local minimum wage ordinances to gun prohibitions—that seek to go further from state law. They have rarely been concerned that more conservative localities, if granted greater “home rule,” might enact policies, such as environmental regulations or building codes, that are more lax than state law. The Second Amendment sanctuary rebellion may prompt some to reexamine their views about how much additional power should be granted to localities.

The Virginia state legislature will soon consider several major gun safety measures, and opponents will likely strongly resist; as one county supervisor has said, “[W]e need to show them a crowd like they have never seen. They need to be afraid and they should be afraid.” Legislators should always be attuned to any unintended consequences of the laws that they pass; that is one reason why we have a deliberative process before bills are passed. But to leave the determination of whether to enforce duly-passed laws totally in the hands of sheriffs and local officials with discretionary power to determine their constitutionality is to turn the rule of law upside down, and is a direct attack on republican government and the Constitution itself.

A modified version of this opinion piece appeared on Slate.com, and portions are further developed in my forthcoming book, In the Room at the Time: Politics, Personalities, and Policies in Virginia and the Nation.

Your Vote Really Counts

November 4, 2019 by David Toscano

IT’S TIME TO VOTE

Two years ago, ONE VOTE denied Democrats a 50-50 House of Delegates. Your vote counts! Don’t wake up Wednesday to find that your candidates lost because you didn’t exercise your right.

This “off-off year” election is traditionally one where Republicans have their biggest advantage in voter turnout. Let’s flip that upside down, Democratic voters, and keep the Blue Wave rising in Virginia!

Democrats in Albemarle and Charlottesville have fielded some wonderful candidates who deserve your support.

VIRGINIA SENATE

Please return Creigh Deeds to the Virginia Senate and vote for Amy Laufer, who will make a terrific addition to that body.

HOUSE OF DELEGATES

In local House races, Sally Hudson does not have an opponent in the 57th but she still needs your votes to become our next Delegate. In other local Delegate races, be sure to vote for Elizabeth Alcorn in the 58th, Tim Hickey in the 59th, and Jennifer Kitchen in the 25th.

ALBEMARLE COUNTY

In Albemarle, there are two countywide races. Jim Hingeley, who understands the strengths and the flaws of our justice system based on decades of direct experience, will make a terrific Commonwealth’s Attorney, and Chan Bryant can be the first female sheriff in the county’s history. And if you live in one of these magisterial districts, please support veteran supervisor Ann Mallek (White Hall), veteran Donna Price (Scottsville), and Bea Lapisto Kirtley (Rivanna).

CHARLOTTESVILLE CITY

In the city, don’t forget to support Llezelle Dugger, who does such a wonderful job as Circuit Court Clerk.

If there is a local race where one vote may make a difference, it would be Charlottesville City Council. We have all witnessed the turmoil surrounding the council and this is your opportunity to express your view about it. Democrats are fielding three candidates for three seats: Lloyd Snook (my dear friend for more than 30 years), Sena Magill, and Michael Payne.

There will also be nonpartisan School Board and Soil & Water District seats on your ballot: don’t miss those votes.

KNOW YOUR POLLING PLACE

Polls are open from 6:00am to 7:00pm on Tuesday. If you’re in line at your polling place at 7:00pm, you will be allowed to vote! If you need to double-check where your polling place is, you can do it online at https://vote.elections.virginia.gov/VoterInformation or call the local registrar’s office for assistance: Albemarle (434-972-4173) or Charlottesville (434-970-3250).

And thank you for participating in the most basic of all of our rights—voting.

David

General Assembly Update: Optima Health and Tax Rebates

October 2, 2019 by David Toscano

WATCH YOUR MAILBOX!

Local residents should watch their mailboxes carefully in the next several weeks because about 2.7 million eligible taxpayers will receive a one-time refund from the Commonwealth as the result of action the General Assembly took last spring.

STATE TAX REBATES

Those eligible should receive $110 if they filed state taxes individually, or $220 if they filed jointly. The check should arrive by October 15. So, if you see a letter from the Department of Taxation – OPEN IT! If you have questions, visit the Virginia Department of Taxation’s website at https://www.tax.virginia.gov/news/2019-virginia-tax-relief-refund or call 804.367.8031.

PREMIUM REBATES FROM OPTIMA

Another rebate for residents in our area may soon be coming from Optima Health as the result of actions by a local advocacy group, Charlottesville for Reasonable Health Insurance (CRHI) (https://www.facebook.com/groups/142730106368938/) and the state Bureau of Insurance (BOI), with a little nudge from yours truly. Under requirements of the Affordable Care Act (ACA), insurance providers are required to spend 80¢ out of every dollar in premiums collected on healthcare claims and quality improvements (in policy parlance, this is called Medical Loss Ratio – MLR). [Read more…]